A view of the courtroom during the June 4, 2013, hearing in which Aurora movie theater shooting suspect James Holmes formally entered a not guilty by reason of insanity plea. (Andy Cross, The Denver Post)

Attorneys for the Aurora movie theater gunman on Monday painted a picture of a man single-mindedly determined to invoke his constitutional right to a lawyer after his arrest outside the theater.

Defense attorney Kristen Nelson said James Holmes asked for a lawyer three times in seven minutes during conversations with two police detectives in an interrogation room about two hours after the shootings.

“How do I get a lawyer?” Nelson said Holmes asked one time. At another: “I want to invoke the Sixth Amendment.” And another: “I want a court-appointed attorney.”

But that legal mindfulness is at odds with the picture Nelson painted of Holmes after the questioning ended.

After detectives left the room, Nelson said Holmes made puppet gestures with paper bags that investigators placed on his hands to preserve gunshot residue. She said Holmes told police he thought the bags were for popcorn. And then, Nelson said, Holmes sat so still for so long that, watching later on video, Nelson thought the recording froze.

Nelson argued Holmes was held “incommunicado” from attorneys for hours before detectives returned later in the afternoon to question him about explosives in his apartment. Meanwhile, a public defender and a private attorney hired by his mother separately spoke with a detective in trying unsuccessfully to meet with Holmes, Nelson said.

What Holmes told investigators allowed police to diffuse the bombs safely, but Nelson said those statements should not be allowed to be used against him at trial because he was not able to have an attorney present.

Add this to the details that make the prosecution of Aurora movie theater shooter so unique: Almost nobody in Colorado pleads insanity.

According to new numbers provided by the Colorado Judicial Branch, defendants entered insanity pleas in only nine-hundredths of a percent of all felony cases between 2001 and 2011. That’s 0.09%, or 9 times out of every 10,000 cases. And it is way less than studies have shown the insanity plea is used in other states.

For instance, a study of insanity pleas in eights states done in 1991 found the plea was used in between 5.7% and 0.3% of all felony indictments in those states. (One of the limitations of assessing the insanity plea, I’ve been told, is that there has been almost no research on its frequency or success rates in the last 20 years.) It is commonly said that the insanity plea occurs in about 1 percent of all cases.

Colorado’s success rate for insanity pleas across all cases where the plea is entered — about 28 percent of the time — is more in line with the national average.

So, too, is Colorado’s rate for insanity pleas in first-degree murder cases, like the Aurora theater shooting. Between 2001 and 2011, 39 of the 1,022 defendants charged with first-degree murder after deliberation pleaded insanity, according to the state numbers. That’s a rate of 3.8 percent. In about a third of those cases, the defendant was eventually found not guilty by reason of insanity, though, as we reported earlier this month, juries almost never deliver insanity verdicts in murder cases in Colorado.

President Abraham Lincoln’s pardon of Colorado soldier Michael Delaney. (Courtesy of the National Archives)

All it took was seven words.

On July 18, 1863, a Colorado army private awoke in a jail cell. His future held seemingly but one grim inevitability: He would be shot to death by his fellow soldiers. He didn’t know when it would happen exactly, but it almost certainly would happen soon because a jury of seven officers had ordered his execution and a captain and a two-star general had already approved it.

Michael Delaney’s crime was deserting his regiment in February, 1862, as it marched south toward New Mexico to fight the Confederacy in the Civil War’s most important western battle. His folly was re-enlisting months later under a different name into a separate Colorado regiment. It took only about a month before he was caught and in handcuffs in Denver. A few months more and he’d been court martialed and sentenced to die.

The morning of July 18, Delaney had been waiting exactly five months for that sentence to be carried out when a notice of his conviction came before President Abraham Lincoln at the White House. After reading of the private who had second thoughts about his second thoughts, Lincoln lifted his pen and scratched almost illegibly seven now-famous words at the bottom of a calligraphed legal record:

“Let him fight instead of being shot.”

One hundred fifty years ago today, Abraham Lincoln, in a flourish of wit and wisdom, gave a lowly private a second chance. The question is, What did Michael Delaney make of it?

AURORA, July 5: He’s bringing a sexy pack.
Aurora police responded to a call of a suspicious backpack at 6:15 p.m. at Walmart, 3301 N. Tower Road. According to police, a 30-year-old man with a backpack acted suspicious when the woman he was with was caught shoplifting. Police were called when security found liquids and piping in the bag. The bomb squad was called in and found the bag filled with sex toys and lubricants. The man had warrants and was arrested. The woman was issued a summons and released.

ARVADA, June 24: Caught in the act.
On June 24, a police officer saw a suspicious man wearing Batman pajama pants walking behind the Family Thrift Center, 6655 Wadsworth Blvd. The man was holding two glass vases and walking away from the donation drop and toward the officer. The man admitted to taking the items from behind the store and put them back.
DENVER, June 26: Drunken man wanders into wrong house.
A man was arrested for trespassing after wandering into a house through an unlocked door in the 2000 block of South Downing Street. The homeowner called Denver Police after he was awakened by his dogs barking. He found an intoxicated man in his dining room and told him to leave. The man left and was later arrested after falling asleep on the porch of another private residence.

A view of the courtroom during the June 4, 2013, hearing in which Aurora movie theater shooting suspect James Holmes formally entered a not guilty by reason of insanity plea. (Andy Cross, The Denver Post)

Today’s story on the enormity of the proposed jury pool for the Aurora theater shooting trial — it would be the largest in state history and among the biggest ever called in the United States — notes why it will be so difficult to seat a jury in the case: The scope of the tragedy involved, the amount of media attention and debates over the insanity defense and the death penalty mean many will be called but few will be eligible.

But what will it take just to handle all those prospective jurors?

The jury assembly room in the Arapahoe County courthouse seats 350 people. That’s almost enough to hold the waves of 400 jurors at a time that Judge Carlos Samour envisions coming into the courthouse.

Rob McCallum, a spokesman for the Colorado Judicial Branch, said the jury pool for the theater shooting case will be randomly selected from people in Arapahoe County’s “jury wheel.” People in the group can only be selected once per year for jury duty — hence the wheel metaphor — and the county and district courts in Arapahoe County usually summon about 1,500 people a week (spread over three different days) for jury duty for all trials. That means there will be roughly 444,000 people in the wheel when Holmes is scheduled for trial on February 3.

At a hearing this week, Samour said he intends to issue summonses for 5,000 jurors specifically for the theater shooting case, with the hope that 3,200 will show up for duty. Those 3,200 would be split over four days — the Thursdays and Fridays of two consecutive weeks. The 800 jurors a day would further be broken down into morning and afternoon sessions of 400 jurors each.

A view of the courtroom during the June 4, 2013, hearing in which Aurora movie theater shooting suspect James Holmes formally entered a not guilty by reason of insanity plea. (Andy Cross, The Denver Post)

As today’s story on the historically long odds James Holmes faces in his insanity plea for the Aurora theater shootings notes, Colorado is one of only 11 states in the country that places the burden of proving sanity on the prosecution.

Thirty-five states say it is up to the defendant to prove insanity. Four states — Kansas, Utah, Idaho and Montana — have abolished the insanity defense altogether or have a “guilty but insane” verdict.

AURORA, May 27: Flagrantly fragrant.
Police were dispatched at 2:46 a.m. to a house on the 15400 block of East 13th Place on a domestic dispute call. According to a report, two women, ages 32 and 29, were fighting due to a previous argument. Apparently, they were sleeping when one of the women farted, so the other sprayed perfume on her body, which led to a brief physical altercation. Both sustained minor injuries during the fight. Neither was charged with a crime.

LAKEWOOD, May 23: Woman busted for late-night serenade.
During the late-night hours of May 23, police received multiple reports of a woman yelling and banging things around on the 7300 block of West Florida Avenue. Officers could hear yelling from outside and told the woman to quiet down. She responded that she was “singing to her cat.” Police were called two more times that night. The woman was cited.

James Holmes sits in the courtroom during his arraignment in Centennial on March 12, 2013. (RJ Sangosti, The Denver Post)

James Holmes wants to plead not guilty by reason of insanity to the killing of 12 people and the wounding of 70 others in the Aurora movie theater attack.

In a filing Tuesday, Holmes’ lawyers wrote they intend to “tender a plea of not guilty by reason of insanity.” Holmes would need the judge’s permission to change his plea. The plea change could come as early as Monday, the next scheduled date in Holmes’ court case.
The notice filed Tuesday starts a series of dominoes in the case.

Because a judge entered a standard not guilty plea on behalf of Holmes — and over the objection of Holmes’ attorneys — at arraignment, Holmes’ attorneys will have to show “good cause” why they should be allowed to change the plea to insanity.

LAKEWOOD, March 17: Prostitution intervention.
Police observed a woman wearing a T-shirt and no pants walking along West Colfax Avenue at Pierce Street. The officer then saw the woman get into the passenger side of a white pickup and drive off. After stopping the truck, the officer realized the pants-less subject was a man. The man told the officer he was just getting a ride from the driver. The officer asked the driver if he picked the man up thinking he was a woman. The driver said yes and was released. The man was arrested for solicitation.

LAKEWOOD, March 19: Drive-by flasher.
A woman contacted Lakewood police as they were detaining a suspicious man. The woman told officers the same man had flashed her 10 minutes earlier outside the Safeway at 9160 W. Colfax Ave. According to the woman, she was driving out of the parking lot when she saw the suspect with his pants and underwear around his ankles, holding his shirt under his chin and exposing himself to her as she drove by. The man was arrested.

LITTLETON, March 8: Shut mouth, open ears.
A Littleton police officer responded to The Tavern, 2589 W. Main St., where two drunken men were resistant after being asked to leave the bar. While an officer was trying to talk to one of the men, another repeatedly tried talking over the officer and refused to step back after being asked multiple times. He was arrested for obstructing a peace officer.

LAKEWOOD, March 9: “Twilight” marathon ends in man’s arrest.
Police received a report of domestic violence on the 7900 block of West Mansfield Parkway. The female victim said she and her kids were having a “Twilight” movie marathon that night, which irritated her boyfriend. He left and returned drunk. They argued and he grabbed the victim and threw her against the wall. When the victim tried to leave with the girls, he threatened to stab her with a knife. The man was taken to jail.

THORNTON, March 7: Ask and you shall receive.
A 45-year-old Greeley man was arrested for drinking and driving. Police pulled the suspect over at about midnight at West Thornton Parkway and Huron Street because he was speeding and had a taillight out. According to a report, the suspect was swerving in and out of lanes and had just hit another driver. When asked how much he had to drink that night, the man replied, “I should be fine. I don’t have to tell you anything else — arrest me if you are going to arrest me.” He was then placed under arrest.Read more…